A/80/181 3. Indigenous Peoples’ land rights include full property rights 32. The customary land rights of Indigenous Peoples are protected, inter alia, under the universal human right to own property enshrined in article 17 of the Universal Declaration of Human Rights. 7 Before colonization or the establishment of current State boundaries, Indigenous Peoples, just as all nations, held full customary ownership of their lands. In the Mayagna (Sumo) Awas Tingni Community v. Nicaragua case, the Inter-American Court of Human Rights affirmed that the right to property encompassed communal land traditionally possessed by Indigenous Peoples. The Court held that “possession of the land should suffice for indigenous communities lacking real title to property of the land to obtain official recognition of that property”. 8 The African Court of Human and Peoples’ Rights reached a similar determination in the African Commission on Human and Peoples’ Rights v. Republic of Kenya case, affirming that the Ogiek Indigenous People holds ownership of its traditional lands. 9 Consequently, the duty of the State is to protect the customary land ownership of Indigenous Peoples, including through demarcation and by registering their legal title to recognize that ownership. 4. Indigenous Peoples’ land rights are permanent and cannot be limited in time 33. Indigenous land rights are permanent; they do not expire; and they are not subject to temporal limitations. This stems from articles 26 and 28 of the United Nations Declaration on the Rights of Indigenous Peoples, according to which Indigenous Peoples have the right to the lands, territories and resources that they have traditionally owned, occupied, or otherwise used or acquired, as well as the right to redress, including restitution, for the lands, territories and resources that have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent. These provisions underscore that Indigenous Peoples cannot be denied land rights due to the passage of time without constant tenure, and that dispossession can occur only with their free, prior and informed consent and with due compensation. Importantly, the absence of current occupation, use or possession does not invalidate Indigenous Peoples’ claims to their lands, territories and resources, nor does it preclude their right and the priority to regain ownership. 10 34. In this context, the continued discussion in Brazil of the so -called marco temporal (“temporal framework”) proposition, which is intended to restrict Indigenous Peoples’ land rights to territories physically occupied as of the date of the adoption of the Constitution (5 October 1988), represents a serious regression. It is a denial of the enduring and permanent nature of Indigenous Peoples’ land rights, which is enshrined in the Constitution of Brazil. Despite having been declared unconstitutional by the Supreme Federal Court of Brazil, the marco temporal premise remains embedded in legislative proposals that threaten to annul existing land demarcations and undermine Indigenous Peoples’ rights. As has been previously noted, this violates international human rights law and contradicts the jurisprudence of the Inter-American Court of Human Rights. 11 __________________ 7 8 9 10 11 25-11701 A/HRC/45/38, paras. 23 and 26; E/CN.4/Sub.2/1983/21/Add.4, para. 1. See also S. James Anaya, Indigenous Peoples in International Law, 2nd ed. (Oxford, Oxford University Press, 2004), pp. 141–148. Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment, 31 August 2001, para. 151. African Court of Human and Peoples’ Rights, African Commission on Human and Peoples’ Rights v. Republic of Kenya, Application No. 006/212, 26 May 2017, para. 128. See communication BRA 2/2020. All communications mentioned in the present report are available from https://spcommreports.ohchr.org/Tmsearch/TMDocuments. See www.ohchr.org/en/press-releases/2025/06/brazil-must-abandon-marco-temporal-doctrineonce-and-all-says-un-expert. 9/21